1. Board of Adjustment created. There is hereby created within and for the city a Zoning Board of Adjustment with the powers and duties as hereinafter set forth.
2. Membership.
a. The Board of Adjustment shall be composed of five members, citizens of the city, each appointed by the Mayor with the approval of the City Council, for a term of three years; provided that, however, for the first appointment under the provisions of this chapter, one member shall be appointed for a term of one year, two members shall be appointed for a term of two years and two members shall be appointed for a term of three years. All appointments hereafter shall be for a term of three years.
b. No more than three members of the Board of Adjustment may be appointed from the membership of the Planning and Zoning Commission.
c. The Board of Adjustment shall elect a Chairperson from its membership to serve for a term of two years.
3. Procedures. The Board of Adjustment shall adopt rules in accordance with the provisions of this chapter. Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson, or in his or her absence, the acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the City Clerk and shall be a public record. The concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
4. Appeals to the Board.
a. Appeal to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the Building Official or City Council. Such appeal shall be taken within 30 days from the date of the decision by filing with the City Clerk a notice of appeal specifying the grounds thereof, and by paying a filing fee of $5 at the office of the City Clerk at the time the notice is filed. The City Clerk shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the Clerk certifies to the Board of Adjustment, after the notice of appeal shall have been filed with him or her, that by reason or facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application and notice to the City Clerk and on the cause shown.
b. The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, giving public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney.
5. Powers.
a. The Board of Adjustment shall have only the following powers:
(1) Powers relative to errors. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the interpretation or enforcement of this chapter;
(2) Powers relative to variances. Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the original adoption of the regulations, or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the district application of this chapter would result in peculiar and exceptional practical difficulties or to exceptional and undue hardship upon the owner of such property, the Board is hereby empowered to authorize, upon an appeal relating to such property, a variation from such strict application so as to relieve such difficulties or hardship, but may establish such requirements relative to such property as would carry out the purpose and intent of this chapter; and
(3) Powers relative to exceptions. Upon appeal, the Board is hereby empowered to permit the following exceptions:
(a) To permit the extension of a district where the boundary line of a district divides a lot in single ownership as shown on record;
(b) To interpret the provisions of this chapter where the street layout actually on the ground varies from the street layout as shown on the zoning map fixing the several districts, which map is made a part of this chapter; and
(c) To grant exceptions to off-street parking requirements when it is determined the size and shape of the lot to be built on is such that off-street parking provisions could not be complied with, and that the proposed use will not create undue traffic congestion in the adjacent streets.
b. In exercising the above mentioned powers the Board may, in conformance with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the City Clerk. In considering all appeals from rulings made under this chapter, the Board shall, in making its findings on any specific case, determine the effect of the proposed change upon the supply of light and air to adjacent property, upon the congestion in the public streets, upon the public safety from fire and other hazards, upon the established property values within the surrounding area and upon other factors relating to the public health, safety, comfort, morals and general welfare of the people of the city. Every ruling made upon any appeal to the Board shall be accompanied by a written finding of fact based upon the testimony received at the hearing afforded by the Board and shall specify the reason for granting or denying the appeal.
6. Appeals.
a. An appeal from any action, decision, ruling, judgment or order of the Board of Adjustment may be taken by any person or persons, jointly or severally, to the Board of Trustees of the city, or, at the option of the person or persons making the appeal, directly to the District Court.
b. Notice of appeal to the City Council, if this option is selected by the person making the appeal, shall be filed with the City Clerk and the Board of Adjustment within ten days from the filing of the Board of Adjustment, which notice shall specify the grounds of such appeal. Upon the filing of such notice, the City Clerk shall place the appeal on the agenda for the next, regularly-scheduled meeting of the City Council, and shall also inform the Chairperson of the Board of Adjustment of the date of such meeting.
c. If the option of appeal to the City Council is not selected, any person or persons, jointly or severally, or any taxpayer, officer, department, board or bureau of the city may appeal any action, decision, ruling, judgment or order of the Board of Adjustment directly to the District Court, by filing notice of appeal with the City Clerk and with the Board of Adjustment within ten days from the filing of the decision of the Board of Adjustment, which notice shall specify the grounds of such appeal. Upon filing of the notice of appeal as herein provided, the said Board shall forthwith transmit to the Court Clerk of the county, the original or certified copy of the papers constituting the record in the case, together with the order, decision or ruling of the Board.
d. An appeal to the District Court from the Board of Adjustment stays all proceedings in furtherance of the action appealed from, unless the Chairperson of the Board of Adjustment, from which the appeal is taken, certifies to the Court Clerk, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate, a stay would in his or her opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted to the District Court upon application or notice to the administrative officer in charge of the enforcement of the terms and provisions of this chapter, and upon notice to the Chairperson of the Board of Adjustment for (from) which the appeal is taken, and upon due cause being show, the court may reverse or affirm, wholly or partly, or modify the decision brought up for review.
7. Notice of public hearing procedures.
a. Notice of public hearing before the Board of Adjustment shall normally be given by publication in a newspaper of general circulation within the city, and by mailing written notice by the Acting Chairperson of the Board of Adjustment to all owners of property within a 300-foot radius of the exterior boundary of the subject property. Publication and mailing shall be accomplished at least ten days prior to the hearing.
b. Said notice shall contain:
(1) Legal description of the property and the street address or approximate location in the city;
(2) Present zoning classification of the property and the nature of variance or exception requested; and
(3) The date, time and place of the hearing.
c. A copy of the published notice may be mailed in lieu of written notice.
d. No notice of hearing shall be required on hearings involving minor variances or exceptions. The Board of Adjustment shall set forth in its statement of policy what constitutes a minor variance or exception.